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Ninth Circuit Keeps Trump's Travel Ban On Hold — As Supreme Court Deadline Looms

"Whatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all."

Last updated on June 13, 2017, at 6:58 p.m. ET

Posted on June 12, 2017, at 1:08 p.m. ET

Kamil Krzaczynski / Reuters

A federal appeals court on Monday kept enforcement of President Trump's travel ban on hold "in large part" — allowing the federal government to conduct "internal reviews" while the ban is challenged but keeping external enforcement on hold.

At a White House briefing, press secretary Sean Spicer said that Trump continues to support the executive order and believes it is lawful and "ultimately will be upheld by the Supreme Court," where a request for the justices to hear an appeal of a different challenge to the ban is pending.

Although Spicer defended the president and the executive order at the briefing, it was Trump's words on Twitter that worked against him on Monday — as has often been the situation in the Trump presidency.

The US Court of Appeals for the Ninth Circuit cited Trump's recent statement — "That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!" — as evidence that the president's assessment is that "the 'countries' ... are inherently dangerous, rather than the 180 million individual nationals of those countries" who are affected by the travel ban.

The Ninth Circuit, in its opinion, kept in place a lower court's injunction that halts enforcement of the temporary ban on travel from six Muslim-majority countries, as well as the portions of the March 6 executive order that temporarily halted the refugee program and capped the number of refugees allowed into the country in 2017 to 50,000.

The Ninth Circuit — which was ruling in Hawaii’s challenge to the executive order — is the second appeals court to uphold an injunction against the travel ban portion of the executive order. The first, from the Fourth Circuit, is the ruling from which the Justice Department is seeking Supreme Court review. The Justice Department also is asking for the injunctions in both cases to be put on hold during the appeal — which would allow the federal government to enforce the travel and refugee bans during any appeal.

In Monday's ruling, the Ninth Circuit did not use the same reasoning as US District Judge Derrick Watson had used in halting enforcement of the ban in Hawaii's challenge to it. Watson had issued the injunction because he found that the challengers were likely to succeed in their argument that the ban violates the Constitution's Establishment Clause.

Because the Supreme Court has previously ruled that "courts should be extremely careful not to issue unnecessary constitutional rulings," however, the Ninth Circuit instead first considered whether the executive order is permitted under law — the Immigration and Nationality Act. The appeals court, ultimately, held that the injunction against the executive order "can be affirmed in large part based on statutory grounds," so it did not decide the Establishment Clause claim.

In its order, however, the Ninth Circuit limited the very broad prior injunction issued by the district court. The district court had halted enforcement of the entirety of sections 2 and 6 of the executive order — the travel and refugee portions of the order, respectively. The Ninth Circuit ruling limits that to the external parts of the bans — while allowing the federal government to conduct internal reviews of its immigrant and non-immigrant travel vetting and refugee policies, as set forth in the executive order, while the challenges to the executive order are ongoing.

The appeals court also lifted the injunction as to the president himself, a step also taken by the Fourth Circuit, because "it is improper to enjoin the President without necessity."

As it had done previously, when refusing to allow enforcement of the president's first executive order on the topic during the Justice Department's appeal of it, the Ninth Circuit rejected the argument that the policy is not reviewable by the courts.

"Whatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all," the court held.

Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez had heard arguments over the ban in Seattle a little less than a month ago. Monday's opinion was issued per curiam, meaning in the name of the court and not authored by a particular judge.

The appeals court issued the ruling hours before a Supreme Court deadline for challengers to the ban to respond to the Justice Department's requests that the justices hear the Fourth Circuit case over the legality of the executive order — Trump v. International Refugee Assistance Project — and allow enforcement of the travel ban during the appeal.

Hawaii already had filed its opposition earlier Monday to the Justice Department's request that the injunction in its case be put on hold during the appeal to allow the federal government to enforce the ban.

Lawyers in the IRAP case filed their opposition to Supreme Court review shortly after the Ninth Circuit's decision was issued. They later also filed their opposition to the government's request for a stay of the injunction issued in their challenge.

UPDATE

On Tuesday, in response to a request from the Justice Department, which was partially opposed by Hawaii, the Supreme Court ordered additional briefing in the department's request for a stay of the injunction in the Hawaii case. The briefing is intended to address Monday's Ninth Circuit decision and its implications for and effect on the stay request.

The Justice Department is to file its first brief before 3 p.m. Thursday, Hawaii is to file its response before noon June 20, and the Justice Department is to file its reply before noon June 21. The justices are due to meet the next day, June 22, to hold their final regularly scheduled private conference before taking their summer recess.

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